A panel of the Ninth Circuit today issued a decision regarding the “Don’t Ask, Don’t Tell” policy. The decision addressed an issue that sounds arcane to non-lawyers, but which is, in reality, critical: what is the level of “scrutiny” the courts will apply in examining the policy?
The reason this is important is because the level of “scrutiny” almost always determines the outcome. When courts look at governmental action under a “rational basis” type of scrutiny, it means they’re not making the government work hard to justify its actions. Any conceivable “rational basis” for the government’s action will be enough to justify it.
By contrast, when courts apply “strict scrutiny” to governmental action, they’re essentially walking up and holding a magnifying glass to the government’s decisionmaking process. If the court finds any flaw in the government’s reasoning, however slight, it will strike down the governmental policy.
This is why it’s so important to decide what level of “scrutiny” a court will give to a particular government action. When the court declares the government’s policy is subject only to “rational basis” scrutiny, the policy is likely to be upheld. When the policy is subjected to “strict scrutiny,” it is likely to be stricken down.
Rational basis = Government action/policy legal
Strict Scrutiny = Government action/policy illegal
Here, the Ninth Circuit looks at the Lawrence v. Texas case, which struck down a law against homosexual sodomy, and tries to decide what level of scrutiny the Supreme Court was applying in that case.
Usually, appellate courts simply state the test they are applying, in a clear way, so that lower courts are easily able to apply the test. This is especially true for the Supreme Court, which must provide guidance for all federal courts in the nation.
But when you’re drunk on judicial arrogance, as Justice Kennedy was in the Lawrence v. Texas decision, the virtue of clarity becomes nothing more than an annoying vexation. The need for clear guidance is petulantly waved aside, as the author of the opinion writes in grand prose. His audience is not the lower-court judges who have to implement his pronouncements. Rather, it is fawning journalists at the New York Times and other elite media outlets.
Thus do the courts find themselves in the predicament of trying to figure out what sort of “scrutiny” the Lawrence v. Texas decision was actually applying. Was it “rational basis” scrutiny? “Strict scrutiny?” Or something in between? Justice Kennedy didn’t bother to say, so the courts are on their own.
One court of appeal has directly ruled on the issue: the Eleventh Circuit, which stated that Lawrence applied “rational basis” scrutiny.
Today, the Ninth Circuit disagrees, saying that some form of heightened scrutiny — essentially a form a “intermediate scrutiny” — applies to the Don’t Ask, Don’t Tell policy.
You can read the decision here. It is the product of three Democrat-appointed judges: Ronald Gould, a Clinton appointee and the author of the opinion; Susan Graber, a Clinton appointee and the second judge in the majority; and William Canby, a Carter appointee who complained that the other two judges didn’t go far enough, and should have applied “strict scrutiny.”
(I can’t wait to read the L.A. Times article to see whether it reports that all three judges are Democrat appointees.)
Note that the plaintiff
argues that Lawrence effectively . . . establish[ed] a fundamental right to engage in adult consensual sexual acts.
Wow. That argument, if accepted, would grease the ol’ slippery slope up something fierce. To say that any consensual adult sexual act is a “fundamental right” under the Constitution has implications that go waaaaay beyond “Don’t Ask, Don’t Tell.”
The Ninth Circuit doesn’t go that far. Yet. Rather, it takes what sounds like a simple, small step: it decides that the Lawrence court wasn’t applying “rational basis” scrutiny. This is just another step down the slope — but don’t let its seeming modesty fool you. It’s a big step.
This is a big decision. It remains to be seen whether it will be recognized as such.
P.S. For what it’s worth, I think “Don’t Ask, Don’t Tell” is a ridiculous policy that should be overturned yesterday. But, like gay marriage, I don’t want to see that done through judicial sleight of hand. I want society to accept both policies. I think we’re on the way. In my view, the courts are only interfering with what is otherwise the natural evolution of people’s opinions, as they are increasingly exposed to gays — and learn, to their surprise, that they’re just people like the rest of us.